I have been a constitutional geek since about 1987 – from the time of the conflicts about the “community charge” legislation and then Maastricht up to the Brexit showdowns in parliament and the Supreme Court.
But I have never seen political chaos like yesterday – which is carrying on into today.
On the face of it, it could seem nothing much happened: there was a parliamentary vote which the government won.
There was yet another cabinet resignation in a year packed with ministerial resignations, and a Downing Street aide was suspended.
All pretty normal in these not-normal political times.
But.
The details from yesterday were extraordinary: a confidence vote which was not a confidence vote; the opposition party almost taking control of the parliamentary timetable; a three-line whip for the governing party to vote against a manifesto commitment; a large backbench rebellion; a former minister not asking a question in parliament in return for a suspension of that aide; a reported standing row between the departing Home Secretary and the Prime Minister; reports of physical violence in the voting lobbies; a Prime Minister wandering almost-lost through the same lobby unable to properly register her vote; the Chief Whip and Deputy Chief Whip resigning and un-resigning, and then reportedly threatening to un-un-resign unless a statement was put out by Downing Street in the middle of the night (at 1.33am); and so on.
A Tory MP says the deputy chief whip, Craig Whittaker, just exclaimed as he exited the voting lobby: “I am fucking furious and I don’t give a fuck anymore.”
There has been an absolute collapse of Prime Ministerial power.
The details from yesterday (and today) are effects, not causes.
They are the effects of there being an implosion in Downing Street, of there being a gap where a functioning Prime Ministership should be.
One way of reckoning the significance of a thing is to imagine what would happen if that thing did not exist.
But now we no longer have to imagine what would happen if we ceased to have a functioning Prime Ministership.
We can now see.
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This is not – yet – a constitutional crisis.
It is certainly a political crisis – indeed, it is an exemplar of a political crisis.
And it certainly is a constitutional drama.
But not all political crisis tip into constitutional crises.
This is not a constitutional crisis – but unless Parliament and the Cabinet sort it it out, it well could do
The essence of politics is conflict – and it is the failure to resolve those conflicts that can trigger a crisis.
Parliament and the Cabinet now need to act – swiftly – to restore a functioning Prime Ministership.
Until and unless a functioning Prime Ministership is restored there will be an accumulation of more unfortunate and dramatic political details.
And there will be worse: because once a Prime Ministership fails, the government itself will tend to fail; and unless Parliament can check and balance that failure, then Parliament itself could be seen to fail.
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Brace, brace – as this blog often says.
But alas that warning is too late for the Prime Ministership of Elizabeth Truss.
That has already crashed.
***
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Imagine that a group of political experimentalists had come together about seven or so years ago to devise a scheme to test just how far the constitution of the United Kingdom could be pushed.
Imagine that demonic scheme was as follows:-
First: the test of a supposedly non-binding referendum in what was normally a parliamentary system
Second: the test to see if a Prime Minister could force through an extra-parliamentary invocation of Article 50, free from any statute.
Third: the test of whether – after over forty-five years – the United Kingdom could be extracted at speed from the European Union.
Fourth: the test of whether parliament could put in place a mechanism to ensure that such a departure required a withdrawal agreement to be in place.
Fifth: the test of whether a Prime Minister could close down parliament so as to force through a no-deal departure.
Sixth: the test of how the constitution can deal with with a dishonest knave of a Prime Minister.
And now we have a seventh: the test of how the constitution can deal with a vacant fool of a Prime Minister.
I may have missed out some of the tests along the way.
We may also soon have other tests – about how to deal with a border poll on the island of Ireland, or a move towards an independent Scotland.
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The constitution has been through a lot in the last ten years – perhaps too much.
Some would say that the tests set out above “show the need for a codified constitution” – but one suspects for some anything and everything “shows the need for a codified constitution”.
In each of the tests to date, there is support for the view that our uncodified constitutional arrangements have fared relatively well.
The supreme court checked and balanced the attempted misuses of Prime Ministerial power and asserted the rights of parliament; parliament with the Benn Act forced a government to enter into a withdrawal agreement; and the body politic ejected Boris Johnson as Prime Minister, even though he had recently won a substantial majority.
But the constitution needs a rest, on any view.
Constitutional law has now been continuously exciting for seven years; and it should never be exciting for more than a few weeks at most, if at all.
And as I type this, a Home Secretary is resigning and government backbenchers are threatening to vote against in a “confidence” motion.
The constitution is not going to get a rest anytime soon.
Brace, brace.
Again.
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The legal blogger Adam Wagner has written a book about the coronavirus regulations.
But the internet does not need another post by one legal blogger saying another legal blogger is wonderful, and so I asked someone else to review it.
Richard Horton was a police sergeant in Lancashire tasked with making sense of and enforcing the regulations on a daily basis, and so I asked him to do the review.
Horton also happens to be the legendary former police blogger known as Nightjack, winner of the Orwell Prize in 2009 – and it is a great honour for this blog to publish his guest post.
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Emergency State by Adam Wagner
Review by Richard Horton
A few years ago I was a jobbing Police Sergeant on a response team in South Lancashire. My hair was short, my beard was goatee and life was good, busy, but good.
Enter stage left the wily Chief Inspector of my parish with a cunning plan. “Richard” he said, “we have a job that needs doing at Licensing Sergeant. Could you take it on?”
I was on the far side of 50 with a borked right knee. Retirement was only a few years away. The joys of managing an ever increasing workload with ever decreasing resources and dealing with the belligerent antisocial at weekends were beginning to fade.
I was being offered one of those fabled “glide path to retirement” jobs. This was the Licensing Department, a small team that knew the job better than me, lots of meetings, the occasional licence review. This was the job to see me out to my pension, and all I had to do was to get my head round the Licensing Act.
Of course I snatched his arm off.
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I settled into the new post fairly quickly. There was a first month punctuated by my wise staff coughing gently and saying “Errm Sarge, you can’t actually do that” and I was lucky enough to do some barrister-led training in licensing.
I had my feet underneath me, everything was going well and then March 2020 happened.
From then on, my colleagues and I had to operate in a rapidly mutating landscape of laws and regulations that soon resembled the hedge in Sleeping Beauty.
The world had caught a virus and here in England, the Government tried to take control.
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Nightly, ministers appeared on radio and television making policy pronouncements about the State of Emergency. From the start, there was a disconnect between what was being said and what was being written into the regulations.
On one notorious occasion, a local night club operator understood this and used better reading and barrister advice on those regulations to stay open until the last possible minute when the local council and I had convinced ourselves that the venue should close.
My team and I would literally huddle round our little office radio waiting for the latest press conference. I would wait expectantly for the publication of each iteration of the regulations. We then had to go out and enforce this stuff.
The simple life of a Licensing Sergeant was suddenly complicated. I vividly remember right at the start taking a police van out along the Merseyside border to check on some outlying pubs. I passed many groups of people, families as far as I could tell, who were going on a walk for exercise. In many cases they looked very uncomfortable seeing a police van approach. I just smiled and waved. Some smiled and waved back. Some didn’t. It felt very strange.
Despite my best efforts, I could not reconcile the briefings to what was coming out in the regulations. Guidance from above was still some distance away. Policing was taking a “let a hundred flowers bloom” approach to enforcement. Things were getting muddled.
I thought I understood what it all meant. I became a sort of one eyed go-to for colleagues but in truth I just was not sure.
Into that chaos stepped Adam Wagner, a human rights barrister at Doughty Street Chambers. He was doing the hard work of reading, understanding and explaining the Coronavirus regulations for the rest of us. It came as some relief to have his work as a reference that proved more reliable and helpful than any amount of briefing and policy announcements.
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Almost inevitably, having stepped into the very centre of the storm, Wagner has now written a book about the State of Emergency and called it Emergency State.
As a history of the times it struck me as entirely accurate. As I read the book there were may moments where I was right back in the Licensing Office reading the latest regulation and thinking “Umm, OK, how are we going to make this work? Actually can we make this work?”
What was a substantial meal? Did a Scotch Egg count? Was the rule of 6 households, acquaintances, indoor, outdoor, socially distanced, masked? What distance was a social distance? How loud could you sing at the karaoke? Was it a nightclub or a multi-use licensed venue? What actually was a nightclub? What parts of my responsibilities were in what tier?
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As soon as my copy of Emergency State arrived I was inevitably drawn to pages 66-68 of the book, Police – understanding of rules.
Wagner dip sampled police officers on their understanding of the regulations and as I feared, he found that the unenforceable guidance had been rolled up into the law by some of my colleagues.
He is generally sympathetic to our plight but rightly points out that in the State of Confusion, many people were given police instructions that were not based on any legal power and many fixed penalty notices were given out that should not have been.
This is important stuff when the police had been given such great power and authority. Policing should learn from this because in the cold light of hindsight, it will diminish our legitimacy.
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From the beginning Wagner sets out that this was a real emergency. There was a virus, it was killing many people, there was no cure, little effective treatment and no vaccine. There was a real prospect of NHS resources being overwhelmed.
He doesn’t claim any special medical knowledge but he understood early the value of bringing his experience and knowledge as a barrister to bear on getting a proper understanding of the scope and power of each development of the Coronavirus regulations. It is a balanced and thorough view. Many times as a I read Emergency State I found myself thinking “Yes Adam but….” only to find that my but was addressed a few paragraphs later.
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The book is helpfully organised chronologically with each chapter headed up by the relevant dates and poignantly the cumulative Coronavirus death toll.
Chapter 6 – Patchwork Summer took me back to that incredibly good summer in 2020 when I spent time patrolling parks with local council staff because there was a local political opinion that somehow groups of people gathering legally in a public park to enjoy picnics and cold beers from the local off licences was a thing to be stopped. Those gatherings were not stopped but we had to look.
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If I had to pick one chapter to survive it would be Chapter 8 – Step By Step.
We should never forget “Partygate” and Wagner sets out persuasive evidence that inside government, things were much closer to the Versailles court of the Sun King than to say, Battle of Britain era Fighter Command.
I read this chapter with a near constant smile. Who had kept all the receipts? Who knew what regulations were being flouted on which dates? Who could definitively say “You broke your own regulations, the ones that you made”? Who could point out that the Metropolitan Police policy on retrospective enforcement of the regulations explicitly allowed and indeed encouraged retrospective investigations into something like “Partygate”?
This comes as a conclusion to one of Wagner’s central themes that for about two years there was an exercise in strong use of state power with very little effective scrutiny. As a country we largely rolled with it but those thorny thickets of regulation were often poorly thought out, impractical and unfair. All the while, behind the palace walls there was hedonistic exceptionalism.
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As I read this book, I could always feel Wagner setting out his evidence and heading towards conclusions. It is well written and accessible and it has to be to coherently draw together the ratcheting of fiat law into everything from the public joy of a walk in the country to the private joy of the bedroom. This is no dry legal telling of the tale. It takes the reader back into the daily history, the tragedies and the fear of Coronavirus. It has a narrative that you can feel.
If I were to clumsily summarise it, I would say that a State of Emergency was necessary but we somehow ended up with an Emergency State.
There are lessons to be learned about keeping that state in some sort of effective balance and on this occasion neither the courts or the legislature were particularly effective.
We (mostly) willingly surrendered many freedoms and although they were eventually returned to us, a blueprint for making further lock downs and restrictions on our freedoms with weak scrutiny and little ongoing accountability is now known. Without scrutiny and accountability we may be left solely reliant on the wisdom and responsibility of our state which is a bad thing. Will those lessons be remembered when we pass this way again?
Probably not I think but if they are, this book Emergency State will be a good start for anybody that wants to know what really happened and more importantly, how it happened.
Richard Horton
TAFKA NightJack
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I am so pleased, excited, nervous and generally grateful that TODAY IS PUBLICATION DAY! Thank you to everyone who has helped me get to this day.#EmergencyState is in all good bookshops, online, audio book (read by me). All info here: https://t.co/JOxsl3IpUfpic.twitter.com/HvCfKwiBsD
For a good part of the history of Prime Ministers, the title of “Prime Minister” was informal.
Until the late nineteenth century it was not used in official documents and it was only in the twentieth century that, here and there, it began to leave a trace on the statute book.
It was a title that was used just to describe the most dominant minister of the day, the one who controlled the cabinet and had the confidence of parliament – usually the First Lord of the Treasury but sometimes not.
And if today one asked an alien looking down from space who was the Prime Minister of the United Kingdom, that alien would assume it was Jeremy Hunt.
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Billy the Fish and the Green Baize Vampire
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One of the features of our uncodified constitutional arrangements is that the power of the Prime Minister varies depending on individuals, events and politics.
The last three Prime Ministers before Truss all lost office between general elections and, as this blog has often pointed out, every Prime Minister since 1974 has either gained or left office between general elections (or, most recently, both).
But loss of office is not exactly the same as loss of power – our constitution is so flexible that not even loss of office is a requirement for losing power.
And what we have at the moment is power moving away from the nominal Prime Minister towards another figure in the Cabinet.
An allusion, in a playful way, to the distinction made by the greatest of our constitutional commentators, Walter Bagehot, between the efficient and the dignified (or, here, undignified) elements of the constitution.
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Many assume there will have to be a general election in the current circumstances – and there certainly should be.
But if the cabinet and the government majority in parliament can accept the current arrangements then there is no way forward to an early general election.
And in the meantime, and like the personal tax rate reduction, any influence whatsoever of Truss over policy is “delayed indefinitely”.
For it is Hunt who has control over policy and has the confidence of parliament – and of the markets.
The word “chaos” – like “crisis” – can be overused in politics.
But on some days the word is apt.
A Chancellor of the Exchequer flew back after cutting short his meetings with the IMF in Washington only to be summarily sacked, and the government performed yet another U-turn on its “growth” mini-budget with what was a mini-press conference.
So much for policy instability – but it is the politics that has gone beyond mere instability into chaos.
The authority of the current Prime Minister within the governing party has simply collapsed.
They are simply not turning up any more:
Someone on the Zoom call says: "Not even a third of the Parliamentary Party has bothered to log in." https://t.co/QQUM4pMcgo
The lack of authority is related to humiliation in the markets:
What we've seen just now is a humiliation for Truss and govt but more than anything else it is a humbling day for Britain. Take out the personalities, and the UK's govt has been forced to change its economic policy and its finance minister by the markets. It will be remembered.
There have been two other occasions in recent history where a British government has come off worse with the markets. In 1976 and 1992. On both occasions, the incumbent government went on to severe defeat- and the folk memory of both lingered long with the electorate.
Perhaps this is the reason “Brexit” was named after “Grexit”.
These are not normal times, of course, but it is hard to see how the current Prime Minister can survive much longer in office – and even if she does, her authority is extinguished.
And when the Prime Minister’s power is low – let alone non-existent – then intense political instability will result until and unless another Prime Minister with authority can be put in place.
The centre cannot hold.
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Stepping back, we must remember that the office of Prime Minister has little formal power.
The name of the office barely features in the statute book – and for a good part of its history, the office had no statutory recognition at all.
The power of the office rests on two bases.
The first is the power that derives from the Royal Prerogative and other means of non-legislative power.
The Prime Minister can, in practice, hire and fire ministers, (again) call general elections, confer honours, set the policy agenda and chair the cabinet and cabinet committees.
But this executive power rests on the confidence of the Prime Minister’s politcal allies.
And once that respect is gone, it is gone.
The second power is that which comes from effective control of the legislature, especially in respect of matters on which there is a general election mandate.
Command of the House of Commons means control of the Finance Bills, and thereby mastery of revenue and taxation; and a general election mandate for a policy means that the House of Lords cannot needlessly delay or block the relevant legislation.
A Prime Minister with a substantial majority won at a general election has the greatest prize that the constitution of the United Kingdom can bestow.
And on paper, the current prime Minister has a parliamentary majority of about seventy.
The Prime Minister cannot even be confident that she could get a Finance Bill through the House of Commons unscathed, let alone any other contentious legislation.
And so, this Prime Minister has no authority in government and no control of Parliament.
It is only because the last few years have seen many other politically odd things that one can think that the current Prime Minister can survive another week.
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The striking thing about this political predicament is that it is entirely self-inflicted.
There was no objective reason – no requirement – for that mini-budget before the conference season.
And there was no good reason for the government to “press on” when it became obvious it had lost the confidence of the markets.
The reason they did so is not ideology – for as this blog contended not long ago, many successful politicians have been guided by ideology.
The problem with current Prime Minister is not that she has an ideology but that she seems to have nothing else.
One suspects that even now she has no sense of what actually she has got wrong: about why reality is not according to her political vision.
And so we have politicians who idolise “free markets” being destroyed one-by-one by the market.
It is quite a spectacle.
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We now get to see how our constitutional arrangements deal with yet another Prime Minister being forced from office between general elections.
It is not, of course, unusual for a Prime Minister to either take office or leave office between general elections.
As this blog has said many times, every Prime Minister since 1974 has either taken office or left office between general elections.
The unusual thing is now it is happening frequently, and we are now on our fourth Prime Minister since 2016.
The cause of this political instability is not that the governing party cannot obtain a majority – it has had a working majority between 2015-2017 and from 2019 onwards.
There is a deeper problem in the politics of the United Kingdom which means that even a governing party with nominal majorities is being relentlessly wrecked.
Brace, brace.
***
Thank you for reading – and now please help this blog continue providing free-to-read and independent commentary on constitutional matters and other law and policy topics.
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Here is a book that has become strangely, suddenly topical:
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It is not a bad book, and it has many merits.
The book is not a “woke” critique of the British Empire nor is it a sturdy defence.
It is more of an account of the British Empire from the perspective of those who administered it.
And of those administrators, the author is critical.
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“Officials, as I hope to show, often developed one line of policy, only for their successors to overturn it and pursue a completely different approach. This was a source of chronic instability in many parts of the empire.”
Successors suddenly overturning policy and pursuing a completely different approach is a bad thing.
Chronic instability is also a bad thing.
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“….empires, through their lack of foresight and the wide discretion they give administrators, lead to instability and the development of chronic problems.”
Lack of foresight and instability are bad things.
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“The British Empire is a bizarre model to follow for fostering stability in today’s world. Indeed, much of the instability in the world is a product of its legacy of individualism and haphazard policy-making.”
Haphazard policy-making is a bad thing.
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“…anarchic individualism led to instability because there was no policy coherence or strategic direction.”
A lack of policy coherence and strategic direction are also bad things
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“Often strong-minded officials and governors would, by a metaphoric sweep of the hand, reverse the policy of decades, thereby creating more confusion and instability.”
Reversing the policy of decades by a metaphoric sweep of the hand, thereby creating more confusion and instability, is a bad thing.
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Our new Chancellor of the Exchequer has suddenly sought to reverse decades of “Treasury orthodoxy” – and summarily sacked the respected Treasury permanent secretary Tom Scholar.
Without sharing the details of the “mini budget” with cabinet the new Chancellor of the Exchequer announced radical changes to established policy, thereby causing uncertainty which was foreseeable.
Off on a frolic of his own, the new Chancellor of the Exchequer single-handedly created wider systemic instability, so much so that the Bank of England is now repeatedly having to intervene so as to prevent meltdown.
Because of the new Chancellor of the Exchequer, we now have repeated U-turns, which are the very defintion of haphazard policy-making.
And because of the new Chancellor of the Exchequer we certainly now have “instability and the development of chronic problems”.
Indeed, the conduct of the new Chancellor of the Exchequer since he took office is an exercise of the “anarchic individualism” which the author of Ghosts of Empire warned us against.
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If only the new Chancellor of the Exchequer had read Ghosts of Empire before taking office.
Oh, he wrote it.
***
Thank you for reading – and now please help this blog continue providing free-to-read and independent commentary on constitutional matters and other law and policy topics.
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Yesterday and today there has been a fascinating case argued before the Supreme Court.
The case is about whether the Scottish parliament can legislate not for independence but for a non-binding referendum on the question of independence.
There is no dispute that actual independence is a matter legally reserved for the parliament in Westminster.
Nonetheless the Scottish government has come up with this clever wheeze of saying that even though the union is a reserved matter, there should be nothing to stop it holding an advisory referendum on the issue.
But the really clever wheeze is how they have framed this case so that it is being heard at the Supreme Court even without a bill being presented to the Scottish parliament let alone passed by the Scottish government.
The Scottish government has done this by means of a “reference” – which allows the devolved governments to refer questions directly to the Supreme Court.
This is unusual both legally and constitutionally, as the Supreme Court is normally an appellate court and not a court of first instance.
And so this is a rare occasion where the Supreme Court is acting, in effect, as a pure constitutional court, rather than just happening to hear an appeal of a constitutionally interesting case.
The reference is framed as being about whether it is open to the Lord Advocate to advise that a bill with such a provision can be brought forward – as set out in the Scottish government’s published case:
This is an ingenious approach.
And nobody knows if it will succeed – not least because there is no precedent to guide us.
The Scottish government needs to jump two hurdles.
The first is the jurisdictional hurdle of whether this is a question that can even be answered by the Supreme Court at this stage.
The second is the substantial hurdle of whether such an advisory referendum is within the competence of the Scottish parliament.
On the balance of probability, any party to litigation needing to jump two such high hurdles is unlikely to succeed.
But nonetheless this is certainly a case to watch with interest – and you should, if possible, watch the footage of the hearings linked to at the Supreme Court page.
My own personal view from having watched some of the hearing is that the Lord Advocate – on behalf of the Scottish government – put the case as well as it could be.
In particular, she explained the legal route that the Supreme Court could take should it want to do so.
In response, the United Kingdom government was less impressive, though this may just be my personal bias.
But little is likely to depend on the oral advocacy – the Supreme Court now has to digest the extensive written documents which have been placed before it by the parties, and that may take months.
So we may have some time to wait.
Whatever the decision, it will be interesting to read the court’s reasoning in this exceptional and potentially consequential case.
For we all know about “advisory” referendums, don’t we..?
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Yesterday’s post on the latest court defeat of the Good Law Project touched on a serious problem with public procurement in the United Kingdom.
The problem is, in a word, accountability.
The law of public procurement provides for special duties on public bodies (and some utilities) when they procure goods, services and works.
These special duties do not apply to private purchasers of such things.
These special duties include the legal principles of transparency and equal treatment.
One reason for these special duties is to promote competition: public supply contracts can be lucrative, and so the competition for such contracts should be as open as possible.
Another reason for these special duties is that it is a public good that public bodies are transparent and treat tenderers fairly and equally.
But.
It is one thing to have such duties, but it is another to ensure that they are enforced and observed.
The unfortunate implication of the most recent Good Law Project court defeat seems to be that it should be left to disappointed tenderers to bring legal actions in respect of non-compliance with public bodies with the legal principles of public procurement.
There is, of course, no dispute that such disappointed tenderers would have standing to bring a challenge.
But it is unrealistic to expect typical government suppliers to litigate against their customers and to accept substantial litigation and costs risks.
Sometimes it can make commercial sense for a disappointed supplier to bring such a claim, but it is rare in practice.
Typical government suppliers have no incentive to vex or irk their main customers – and, regardless of the theory that such things should not be taken into account in the next procurement exercise – upsetting major customers is not usually a sensible thing to do.
And if disappointed tenderers are disincentivised from bringing challenges, then who enforces the rules?
The courts do not seem to like self-appointed crowd-funded publicity-seeking groups like the Good Law Project bringing such challenges.
But if such groups do not bring challenges, then who will?
My own view, for what it is worth, and as a former central government public procurement lawyer, is that there should be an independent statutory body that can challenge seemingly errant public procurement exercises.
This would do domestically what the European Commission can do in respect of breaches of European Union public procurement laws.
It would be like an Office of Fair Trading or National Audit Office but for public procurement, with powers to request documents and issue sanctions.
Such a body would also be able to look at complex procurement issues in a way that a court is ill-equipped to do in litigation.
And to placate those who would not like this domestic equivalent of the European Commission, it could be called something quaint like His Majesty’s Inspectorate of Public Procurement.
The alternative – given that bodies like the Good Law Project are not to have standing – is to have a system of law that is supposed to act in the public interest which is, in effect, unenforceable other than by the untypical and occasional, desperate and litigious government supplier.
The “public” needs to be put back into public procurement, and this is one proposal for how that can be done.
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Many are uncritical fans of the the GLP – I am not, but neither am I a committed opponent of it either.
But there is something in the recent defeat which I think should prompt wider discussion.
For not only did the GLP lose the case on the substance, it also lost outright on the question of “standing” – that is whether it was in the legal position to bring the case in the first place.
In essence: the GLP was not an “economic operator” adversely affected by the procurement decisions in question, and so it was not able to bring an application for judicial review.
If you read the court’s reasoning on this – from paragraph 498 onwards – you can see the judge’s points.
But.
The law of public procurement is distinct from the law relating to procurement generally because public authorities have to comply with certain public law principles when making decisions – principles with which a private entity making procurement decisions do not need to comply.
This is because those principles – such as transparency, equal treatment and so on – are for the public benefit, and not just the interests of the (potential) bidders.
And if these principles are to have teeth – that is, if they are to make a difference – then they need to be enforceable.
Else they are polite fictions.
An adversely affected competitor may perhaps have a private commercial interest in challenging a botched public procurement decision.
But that will be on private, selfish grounds – and not out of some sense of altruism.
So how are the unselfish public law principles to be enforced?
Given these principles are there to benefit the public generally, should it only be left to when the breach of principle overlaps with the private interests of a disappointed competitor?
One answer is to give bodies such as GLP standing to bring claims.
But the import of this judgment is that such a wide view is not valid.
And perhaps there are questions to be asked about self-appointed interest groups bring such strategic and tactical litigation.
But if not groups such as GLP, then who?
In the European Union there is an easy answer: the European Commission can bring proceedings for breaches of European Union procurement law.
But there is no such body in domestic law: there is not really a public procurement equivalent to the Office of Fair Trading.
Perhaps there should be.
But, with this decision on standing, it is not obvious what the “public” means in “public procurement”.
Yes, the GLP has many critics – and some of those criticisms are valid – but there is also something not quite right about a system of “public procurement” where the public law principles of transparency, equal treatment, and so on, can only be enforced if they happen to coincide with the private interests of a competing economic operator willing to assume litigation risk against a major customer.
(And few – if any – regular government suppliers want to litigate against their main customers, as it leaves a poor impression for the next tender.)
If the courts are going to take this strict view of standing, then the “public” element now needs to be built into the process some other way.
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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
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Here is something a little different – this is a lecture I recently gave to students at my alma mater the University of Birmingham. It has been amended and updated since delivery.
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Law, blogging and social media
A lecture by David Allen Green
Honorary lecturer in the public understanding of law at the University of Birmingham
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This is a lecture about legal blogging and legal commentary on social media: in general terms, that is non-commercial and usually free-to-read online commentary on cases and laws, often addressed to the interested general reader, as well as to specialists and students.
Blogging and social media generally is a phenomenon that has really come about in the last twenty years, though there are some precursors. And legal blogging and legal commentary have become more prominent in the last fifteen years. To an extent it complements the mainstream media, but it also compensates for the decline in specialised legal reporting and comment by the press and broadcasters. And it can also do things which are innovative.
There has also been an increase in legal podcasting and law-related videos on YouTube and other media, and some of what I say will apply to that too, though I know less about that.
In one way, this rise of blogging and social media is a curious phenomenon, as of all subjects, you may think that the study and practice of law would not require any more words. For words are the stuffing of law, at least in the common law jurisdiction of England and Wales.
Words everywhere. Words as the sources of law. Words set out in legal instruments. Words in the various written documents which can be put before that court or tribunal: pleadings and statements of case, and what Charles Dickens once listed sarcastically as“bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters’ reports, mountains of costly nonsense”.
And in addition to all these formal words, we have all the further words of explanation, analysis and commentary. Libraries are packed with these words, in textbooks and journals.
Words! Words! Words!
I’m so sick of words!
I get words all day through;
First from him, now from you!
Is that all you blighters can do?
Lawyers are like the tormentors of Eliza Doolittle, for it seems that words are all that us blighters can do.
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So, whatever is lacking in the study and practice of law, it does not lack for words. Indeed, you may think there are too many words already, and that there should be fewer and that no lawyer or legal commentator should produce any more words than is necessary. You may well have a point.
But in the last twenty years there has been this new medium for the discussion of law: the internet. The internet, in its World Wide Web incarnation, has given rise to instant international electronic publication. And this, in turn, led to “web logs” – blogs – and social media platforms. Millions of extra words about law have now been published, in addition to the many words that stuffed the law already.
Perhaps all the words published online about law in the last fifteen or so years are more than all the words in a comprehensive law library. If so, nobody would be surprised.
In this lecture I shall set out features of blogging and social media generally, as well as some observations about legal blogging and the use of social media in particular.
I speak from the perspective of someone who came into law as use of the internet in legal practice became popular and then indispensable.
I remember the bemusement in 1997 when Massachusetts judge Hiller B. Zobel first published his judgment in the Louise Woodward case on the internet rather by any other means.
I also remember in 1998, as the first Research Associate at what was then (and should still be) the Law Faculty of this university, printing off the judgment in Pinochet (Number 1) on the day it was handed down, to give to an excited academic who was not used to obtaining a written judgment so quickly.
But by the time I was called to the Bar in 1999 and cross-qualified as a solicitor in 2001 there were computers with internet browsers on almost every desk of every law firm and every lawyer had an email address, though some partners insisted on emails being printed off and brought in by their secretaries.
And this lecture is is also from the perspective of someone with over twenty years’ experience in legal practice and about fifteen years’ experience of seeking to explain legal matters in blogs and social media, and in the mainstream media, as well as dealing with blogging and social media matters as part of my legal practice.
I was not one of the earliest legal bloggers, but I was early enough so that I had to code my posts in HTML, and I used my blog to help bring about libel reform by detailing the then-notorious illiberal and misconceived case of the British Chiropractic Association v Simon Singh.
I was also a fairly early user of Twitter, and I was the appeal solicitor in the once-famous “Twitter Joke Trial” case, where we spent three years explaining internet humour to the English judiciary, before the Lord Chief Justice laughed at one of our barrister’s jokes in court and we somehow won.
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So let us ask: “What is a blog, and what is it to blog?”
For before we can assess legal blogging, we need to understand the nature of blogging – and also the nature of social media, which some have called “micro-blogging” – and how blogs and blogging differ from other media.
Here you will see that the law of England and Wales has shied from providing a definition. According to the legisislation.gov.uk website, there is only one Act of Parliament which mentions the word “blog”.
Paragraph 8 of Schedule 15 of the Crime and Courts Act 2013 refers to a situation where a person publishes news-related material on a “multi-author blog”. The term “multi-author blog” is then defined as “a blog that contains contributions from different authors”. But the wise parliamentary drafter did not attempt to define the word “blog”
The Oxford English Dictionary is a little more revealing. Blog as a noun is defined as “[a] frequently updated website, typically run by a single person and consisting of personal observations arranged in chronological order, excerpts from other sources, hyperlinks to other sites, etc.; an online journal or diary”. And as a verb, to blog is “[t]o write or maintain a blog”.
I am a commentator, and not a lexicographer, and so I will not presume to offer a definition of a blog, which would enable you in every circumstance to determine what is a blog and what is not.
But what I can do is to set out some broad features of blogging, and how these features distinguish blogging and social media from other forms of media.
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The first feature of blogging seems banal, but it is crucial. It is that blogging is about writing for a screen – and thereby also about reading from a screen.
This quality distinguishes blogging from book-based and other paper-based media. Of course, one can print off blogposts to read, just as those partners printed off their emails. Some bloggers have even published books based on blogposts.
But blogging – ultimately – is about what you can do with screens and keyboards, with a computer or mobile device.
This means that the writing of blogs is different from writing for publication in hard-copy. Instead of wanting the reader to turn a page, or to compare text on one page with another page, one aims for the reader to scroll, sometimes on a relatively small screen, and often not at a desk or in a library.
And writing readable, scrollable text is a skill. One law firm, Pinsent Masons, with its pioneering and highly regarded Out-Law site, even sensibly employs those from a journalistic background to write posts.
For the independent blogger or commentator on social media, an understanding of how your text or other material will be looked at by your readers should govern how you present it. Clutter is out. And long paragraphs are out – though you do not need to go to the extreme of one-sentence paragraphs. A reader is more likely to read ten paragraphs of ten words each, than a long paragraph of one hundred words.
And brevity is your friend. Long paragraphs can hide clumsy thinking. With short paragraphs you must set out your propositions succinctly, with nowhere to hide. It is a useful (if sometimes difficult) discipline. But in this way good internet writing helps develop and sharpen your own thinking.
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A second, and also straight-forward, feature of blogging is that usually the blogger is a self-publisher.
This is in contrast to, say, a writer published in the mainstream media, where they are commissioned, edited (and sub-edited) and published by other people: for example, a newspaper or magazine weekly columnist who has to provide an 800 or 1200 word opinion every Thursday, regardless of whether their view warrants that many (or few) words, and whether Thursday is the best day to collect their thoughts. A blogger can publish what they want when they want, and a blogger can also decide not to publish anything at all.
A blogger is often a person who, entirely by their own volition, publishes a thing to the world. Normally nobody has asked for it. Nobody may even want it. But the thing is published anyway.
Of course, this means that blogging and social media can be dominated by those who are more confident, perhaps over-confident. You are assuming that your views are worthy of publication. This is the inescapable truth for anyone who publicly volunteers their views on the internet, and it actually covers both those who blog and those who criticise them.
But confidence does not necessarily mean that you have anything worth saying. Other things are needed.
And what offers a check and a balance to those who are over-confident is the engagement with the readers, if any, of what you publish. For just as you are free to publish what you want, your readers will also be free to say what they think of what you write. They may be on the other side of the moat, but they can be just as repellent (and brutal) as any gatekeeper.
Publishing to the world is relatively new thing. Before the World Wide Web it was practically difficult for any person to personally publish a thing outside of those to whom they could deliver or post a physical copy, and it was almost impossible to broadcast, unless you went through a gatekeeper or, as with pirate radio stations, broke the law.
You could print off and distribute a leaflet or pamphlet, but there would be physical and logistical limits as to how much of what you created you could provide to others. The gatekeepers – the newspapers, the publishing houses, the established broadcasting stations – controlled who had access to wider audiences. The means of the publication and broadcast of media products were in the hands of the few, and not the many.
Now self-publication of blogs and social media posts has enabled those who are not able (or willing) to go through more traditional outlets for the dissemination of their insights. Of course, there is no doubt that the lack of commissioning and editing (and sub-editing) stages mean that there is a great deal of dross being published on blogs and elsewhere on the internet. But the lack of prior approval means that many – who would otherwise not find it easy to publish to the world – are able to do so, regardless of any gatekeepers.
One of the great early blogs was “Night Jack” which was by an anonymous then-serving police officer, describing the realities of policing. That blog deservedly won the Orwell prize.
More recently the “Secret Barrister” Twitter account and blog has provided an articulate and scathing ongoing account of the serious problems with the criminal justice system, as have other criminal barristers on social media such as Joanna Hardy-Susskind, who recently did a brilliant post on the criminal justice system. The contribution of these front-line practitioners to the public debate on criminal justice has been invaluable.
There are other examples. One outstanding blogpost was written by the tax barrister Jolyon Maugham (who has since gone on to other things). In that post he described what amounted to a racket: how senior tax counsel gave opinions that they could not have sincerely believed in support of elaborate tax avoidance schemes. It was a brave and remarkable post, and it showed the value of informed legal blogging, putting something into the public domain that otherwise could not have been published, at least not easily.
But there is one serious problem that comes with self-publication – and it is a problem that those with a legal education and/or a legal qualification should be especially conscious. A self-publisher is, in general terms, a publisher for the purposes of civil and criminal liability. Qualified lawyers are also subject to their respective profession’s disciplinary code. Many qualified solicitors will also be subject to media and social media policies of their firms. And those applying for jobs may get their social media history searched and vetted by prospective employers. Blogging and social media therefore are full of perils.
So bloggers and tweeters are, as self-publishers, free to blog and tweet as they wish, at least in there not being any third party approval before you press “send”. But this freedom includes the freedom to publish and be damned.
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A third quality is that blogging and social media is occasional and flexible. As already mentioned, one can choose when to blog and tweet and when not to do so. Unlike, say, a columnist in the mainstream media, bloggers and tweeters usually do not have to have a view on one topic every week which is exactly 800 words long.
So, if there is nothing to blog or tweet about, or you have not got anything worth saying, then you do not have to say anything. And if what you want to blog or tweet about needs only a few paragraphs, then there is no need to artificially inflate the word count.
Indeed, in my view, blogging is more akin to pamphleteering, than anything else in the traditional media. The pamphleteers were those with access to a press who wanted to publish and distribute their views and share information outside the usual media of their time.
Blogging and social media can also be speedy. When there is something worth saying, it can be part of the public debate very quickly. For example, at the time of the then Prime Minister’s attempt to invoke Article 50 without legislation, a speedy blogpost by Nick Barber, Tom Hickman and Jeff King provided the legal basis for what then became a successful legal challenge by Gina Miller and others.
Another topical post was when the immigration lawyer Colin Yeo used the newly released Paddington the Bear film to frame an informative and engaging post about the rights of refugees and migrants. This post, which may be one of the best English legal blogposts ever published, used one event brilliantly to explain another issue dominating the news.
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The electronic nature of blogging provides its fourth feature, which also distinguishes it from many other forms of media. This quality is that a blog can link to other webpages.
A legal blogger can therefore link to their sources, especially to legal materials such as case reports and legislation. What other writers can only do indirectly with footnotes, a blogger can do directly with hyperlinks. So blogging is not only pamphleteering, but pamphleteering with electronic footnotes.
This is especially useful for blogposts which comment on cases and other legal materials, and as such they allow instant comparison for the reader between the source and the commentary. Some blogs, such as the highly regarded SCOTUS blog in the United States, and the INFORRM media law blog in the United Kingdom, provide such sourced posts regularly, with multiple bloggers contributing.
Many readers of a blog will not actually click these links. On my own blog, it is usually only 1% of visitors who will click on something in the post. But it is the fact that the links are there, and so it is open for the curious or sceptical reader to check things out for themselves, which provides confidence and comfort. Because a reader knows that they can click, they will often not feel any need to do so.
As courts and public authorities become more prone to publishing what can be called “primary” materials on the internet, then bloggers and those on social media can, in effect, be the first gloss of interpretation of those materials, in addition to and sometimes circumventing the mainstream media.
And sometimes, as with Adam Wagner’s extraordinary mastery of the confusing and shifting coronavirus regulations, the blogger can become an authoritative source of information even for the courts and public authorities themselves. In this way the volunteer blogger can become an important public service.
My first book, Emergency State, on the constitutional chaos caused by the pandemic, will be out on 13 October 2022!
The fifth feature of blogging and social media has already been mentioned. It is engagement: the immediate and candid (and public) relationship the online commentator will have with their readers and critics.
Of course, lawyers in practice and academics facing peer review also are used to adversarial situations: of people telling you that you are wrong, and worse.
But the intense and open nature of feedback on the internet means that if you are wrong, this will be pointed out swiftly and sometimes powerfully.
This engagement provides a discipline that helps you avoid foreseeable errors and lazy overstatement. Of course, some will still attack you anyway, for saying something which you did not say or did not mean; but writing for a critical audience concentrates the mind wonderfully on getting things as right as possible.
This constructive engagement is distinct from trolling: the vile or condescending messages that unfortunately are a characteristic of too many online exchanges.
A blogger or social media commentator who is seen as good and insightful will, by an informal process of internet peer review, gain a substantial following. But such a reputation is precarious, and you are only one false move from unfollows and hostility.
Some blogs and Twitter accounts prompt comments and replies that are often more valuable than the original posting. This is certainly true of my own law and policy blog, where the real value of the blog is invariably in the comments below the line, which take my head post as a starting point.
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Legal blogs and social media accounts are varied.
Some are veterans of mainstream media, such as the matchless Joshua Rozenburg. One outstanding blog was by the late Sir Henry Brooke, a retired Lord Justice of Appeal, who can be fairly regarded as the best legal blogger the United Kingdom has ever produced, who turned to blogging as a hobby in retirement and mastered the medium immediately.
Some commentators are earnest, and some are less earnest.
Some blogs are by practitioners and legal academics, and some are by those with expertise even if they are not legally qualified. And some are from student and those training to be lawyers.
There are blogs and social media accounts that do brilliant expositions of the black-letter law. There are those that offer speedy case comments and critiques of formal documents. My own blogging tends to take something legally related in the news and contextualise it and assess its practical significance.
Some of these blogs and social media accounts do what used to be done in mainstream media; others do things which were not really open for traditional media channels. Some are anonymous, and others are emphatically and stridently self-promotional. Some are connected to business and practice development, while others keep their practice and their commentary separate.
There is no one right way – no single model – of using a blog or a social media account for explaining, analysing or commenting on the law, but there is one golden rule.
The golden rule that all this online legal commentary should comply with is that, as far as you can, you should try to get the law right.
This means that you do not publish something about the law about which you are not confident; and it also means that if you are shown to be wrong (or to have overstated something) you respond accordingly. Sometimes corrections and clarifications (and deletions) are painful, if not humiliating. But they have to be done.
This duty is distinct from any professional duty as a legal adviser. Not all legal commentators are in legal practice – and some outstanding legal commentators are not even legally qualified. Explaining and commenting on the law generally is not the same as advising a client in a particular situation.
But taking the law seriously, even if you seek not to take yourself too seriously, is essential.
And if you do not take the law seriously, then whatever you are doing (or think you are doing), you are not commenting on the law but are doing something else less useful instead.
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So why bother with legal blogs and social media?
For the reader – or lurker – there is the benefit of high-quality explanation, analysis and commentary that is either not elsewhere or is not easily obtained, and in a form that is easy to scroll and to click on links to open new tabs. As long as you use your critical faculty, or rely on the critical faculties of those you respect, then you are giving yourself access to a great deal of first-rate legal information.
For those who are tempted to blog or tweet about the law, we salute you. For every thing you may gain by doing so, there may be an equal and opposite reaction. These can range from being simply ignored or being told that you are wrong, to creating professional and legal risk for yourself. It is not to be done lightly, and many sensible student and lawyers choose not to comment online about the law.
But there is also something to be said for law students, law academics and legal practitioners doing what they can to promote the public understanding of law. For if lawyers do not do this, then it will be left to others, and so there will be caricatures instead of insights, and misinformation instead of information.
And so even if you do not provide online legal commentary yourself, you should help circulate good legal commentary when you come across it, for the benefit of others as well as for your own benefit.
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As we started with My Fair Lady we can also end with it.
In another scene of the film, Professor Henry Higgins turns on all the phonographic machines in his gorgeous library, and dials the machines louder and louder. All we hear is a babble of voices, and of words. Colonel Pickering covers his ears.
And this is how the internet and social media can seem to the uninitiated – a louder and louder babble of voices and words. In response to this, we may wish to share the reaction of Colonel Pickering and cover our ears, or at least turn off our browsers and internet connections.
But it is not all noise of the same quality, for there are signals there too. Not all words of equal value. For just as there are good textbooks and bad textbooks, and well-reasoned judgments and less well-reasoned judgments, there is good and well-reasoned online legal commentary, and there is bad or less well-reasoned online legal commentary.
The task to develop is to be able to know the difference, and so benefit from – and even promote – this boon to the public understanding of law.
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Comments Policy
This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.
Comments are welcome, but they are pre-moderated and comments will not be published if irksome.
